Monthly Archives: February 2013

I have to appreciate the New York Courts and the recent decisions that have come through the gates. Recently, I wrote about how giving a cop the finger didn’t amount to reasonable suspicion to warrant an investigation by that officer. (See Hello Officer, Read my Middle Finger!). Yesterday, the New York Court of Appeals declared swearing at a police officer equally didn’t amount to the commission of a crime or probable cause.

Here are the facts:

… Officer Johnson and another police officer were parked in separate marked police vehicles on a residential street in Rochester. Johnson noticed that a woman (later determined to be defendant’s girlfriend) was standing in front of a house across the street from where he was parked and was videotaping his activities. Curious about the woman’s identity, Johnson ran the license plate of a Cadillac that was parked in her driveway and discovered that the plate number had been issued for a Toyota — not a Cadillac.

Johnson briefly stepped out of his car to ask who owned the automobile and the woman responded that it was her grandfather’s vehicle. The officer then reentered his patrol car. A few minutes later, defendant Trevis Baker approached the open passenger-side window of Johnson’s car, leaned his head in and inquired why Johnson had checked the license plate. Johnson said something to the effect that he could run a plate if he wanted to.

Defendant started backing away from the police vehicle towards the middle of the street, swearing at the officer. When Officer Johnson asked “what did you say,” defendant repeated the profanity and accused Johnson of harassing him. After radioing his partner that he intended to make an arrest, Johnson exited his vehicle and, with the assistance of his partner, placed defendant under arrest. These activities apparently attracted the attention of various civilian bystanders and, by the time of the arrest, about ten people had congregated on the sidewalk behind defendant and his girlfriend. In a search incident to arrest, the police discovered that defendant was in possession of 25 bags of crack cocaine.

Based on these facts, Baker was arrested and charged with possession of a controlled substance and disorderly conduct. Baker attorney argued at a suppression hearing, that “the First Amendment protects the right of a citizen to express disagreement with police actions, which was precisely all that defendant was doing in this case.”

The trial court denied Barker’s motion to suppress evidence and to dismiss the case. But the Court of Appeals had a different view, deciding that the proof was insufficient to support a finding of probable cause to arrest because there was no “public harm” in Barker’s statements.

The court rationalized because the swearing at the police officer occurred

During daylight hours on a public street, defendant made two abusive statements claiming harassment to a police officer who was seated in a patrol car. It is clear from the videotape that the public outburst was extremely brief, lasting about 15 seconds. The statements were not accompanied by menacing conduct — defendant was stepping away from the vehicle when he made them.

And my favorite part of the opinion,

there is no basis to infer that Officer Johnson felt threatened by the statements. If he had, he would likely have remained in his vehicle, rolled up the windows, radioed his partner to do the same and requested backup.

If you’re scared, you stay in your car. You don’t do what Officer Johnson did…

Instead, Johnson immediately exited his vehicle. The fact that another police officer was present — also safely ensconced inside his own patrol car and fully able to provide assistance — diluted the risk that others in the vicinity would join forces with defendant and gang up on Johnson.

Brilliant!

And the last important aspect of the case, the exchange occurred between a single civilian and a police officer. Baker’s statements were directed exclusively at a police officer who, according to the courts, is “a party trained to diffuse situations involving angry or emotionally distraught persons,” which further undermined any threat of public harm because the police officer was in a position of safety and could have closed his windows and ignored Baker.